'Not Purely of Law': the Doctrine of Backward Peoples in Milirrpum

The terra nullius doctrine is commonly asserted to be the basis upon which Great Britain claimed territorial sovereignty over eastern New Holland in 1788 and, subsequently, the remainder of the Australian continent. However, in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, in which the only comprehensive account in the Anglo-Australian jurisprudence to examine this issue prior to the 1992 Mabo (No 2) decision, it was not terra nullius which was declared to be the foundation but the Doctrine of Backward Peoples, which posits that a territory inhabited by 'uncivilized inhabitants in a primitive state of society' can be dispossessed by 'more advanced peoples'. In this article, the unusual provenance and the ultimate integrity of this Backward Peoples doctrine is explored, analysed and found to be of doubtful legitimacy. Despite this, the Milirrpum decision had one remarkable feature, a finding of fact that the indigenous Yolngu People had a system of law in 1788 which remained extant and vibrant nearly 200 years after the assertion of British sovereignty. Their system survived the assertion of British sovereignty and, most problematically, this finding of fact threw the rarely-exposed constitutional common law foundations of Australia, including the orthodox theory of British sovereignty over New Holland/Australia, into stark relief.

James Cook University law review

James Cook University Law Review

23

1839-2792

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N/A

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